Appeal No. EAT/172/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 21 June 2001

Before
HIS HONOUR JUDGE J ALTMAN
MRS R CHAPMAN
MR K EDMONDSON JP

DARWINGROVE LTD t/a ELITE SECURITY	APPELLANTS

MR J R PASSELOW	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellants	MR JEFFREY JUPP
(of Counsel)
Instructed by:
Messrs McCrombie & Co
Solicitors
St Pauls House
23 Park Square
Leeds LS1 2ND	

JUDGE J ALTMAN

1	This is an appeal from the Decision of the Employment Tribunal sitting at Leeds on 9 November 2000.  It comes before us by way of a preliminary hearing to determine if there is a point of law capable of argument in full, before the Employment Appeal Tribunal.  The arguments have been presented by Mr Jupp, who has both succinctly and comprehensively dealt with such arguments as can reasonably be made, arising from the Decision.  

2	In the Notice of Appearance the Appellants raise the primary issue as to whether or not the Respondent was in fact an employee of the Appellants so as to found a claim for unfair dismissal, or whether in fact he may have been employed elsewhere or whether he was self-employed.  

3	Mr Jupp, through the Notice of Appeal and arguments before us, argues that the Employment Tribunal did not properly address that issue so as to show the reasons why they came to the conclusion that the Respondent was in fact an employee of the Appellants, and furthermore he says that in their approach to the issue, when one looks overall at the way in which it is expressed in the Decision, the Employment Tribunal appear to have treated the matter as a presumption in favour of employment, requiring the Appellant to disprove it.  The general tenor, he says, of the Decision, is that the Tribunal was not looking at what the Appellants said and analysing whether he was an employee, but rather looking at whether the Appellants could show that the Respondent was not an employee.  He points out that the burden of proof rests upon the Respondent, where the existence of a contract of employment is in issue, to demonstrate that he was an employee at the relevant time, and he would say that the effect of the approach of the Employment Tribunal was to reverse the burden of proof and to approach the case on the basis that they would treat the Respondent as an employee, unless the Appellants proved that he was not.  He draws our attention to the relevant paragraphs of the Decision.  At paragraph 2(a) the Employment Tribunal purport to make this finding:
“The [Respondent] commenced employment with [the Appellants] on 3 January 1998”

4	Jumping ahead, to the end of the Decision in paragraph 3, it is clear that the Employment Tribunal directed themselves to the issue of law, amongst others, that they had to consider in the following terms:
“There is of course the preliminary issue in this case as to whether the [Respondent] was an employee and if so an employee of [the Appellants]”

5	Returning to the findings of fact, in paragraph (b) the Employment Tribunal referred to the fact that there was a letter purporting to be a letter of appointment by the Appellants of the Respondent, of 14 December 1997, but which the Appellants contended had been forged so as to give the appearance of an employment relationship which did not exist.  Each line, even though it did not begin with a sentence, began with a typed capital, which is unprofessional and unlikely, the Appellants say, to have been typed by a secretary in their employment, and secondly, the signature bore a physical difference, easy to see from that, for instance, appended by the same person to the Notice of Appearance in this case.  The Tribunal expressed itself as follows:
“….however it appeared to the tribunal that regardless of that issue, the [Respondent] was employed as group commercial manager for the Elite Security Company which is expressed to be a division of Darwin Grove Ltd ………at a salary of £36,000 per annum.”
That was what the Respondent had said.  

6	The Employment Tribunal, it seems to us, were deciding not to decide the dispute as to whether or not that was a genuine letter.  We understand that the arguments presented to us had been presented to the Tribunal.  However, it seems to us, that a Tribunal is not bound to adjudicate upon every dispute of fact, and some disputees are not capable of satisfactory resolution in the judgment of a Tribunal.  It seems to us clear that the Employment Tribunal were not forming a view, one way or the other, about that letter.  

7	We can understand Mr Jupp’s argument that they should have done so, but very clearly, it seems to us, on a fair reading of that Decision in general terms, the Employment Tribunal was expressing itself effectively as not being able to do so.  It is a shame, perhaps, that they did not specifically say that they could not choose between the two versions as to whether it was genuine or not, but that is clearly the import of their Decision.  

8	There is therefore a finding of fact of employment, but it is argued that there was no explanation as to why some evidence was rejected, and what evidence was in fact accepted.  We are told that there was a document before the Tribunal which we have seen, which purported to be an extract from a day book of detailed bank payments, which showed payments by the company Sprightright Ltd to the Respondent of about £2000 at the end of each month, throughout most of 1998, and there is also a revenue form in the bundle before us exhibiting a Companies House annual return, showing that in relation to a company called Propaganda Media Ltd, the Respondent was shown as being a commercial manager and director.  In their Decision the Employment Tribunal said this:
“(c)  Despite what Mr Stevenson contended, the tribunal did not find any evidence that the [Respondent]’s employment began with a company called Sprightright Ltd nor that it was transferred at some point in 1999 to Darwingrove Ltd nor did we accept that in the Spring of 2000 the [Respondent]’s employment was transferred to Propaganda Media Ltd.  No documentation was produced to record these alleged changes despite the [Appellants] being a large employer, employing Mr Stevenson told us 370 employees.”

9	It is true that no specific reference is made to the documentation to which we have been referred, but we have heard no evidence to contradict the finding that the Tribunal made that the changes of alleged employment were not supported by any documentation, as opposed to the purported employment at a point in time.  

10	It is also said that there was an error of fact in the Decision in that it was not the case of the Appellants that the Respondent was at any time transferred from the employment of Sprightright to that of the Appellants.  It is true that the Tribunal did not advert directly to the evidence that the Appellants produced to support the suggestion that the Respondent was employed elsewhere, but they did go on to deal with payments, and in paragraphs (d) and (e), they referred to a ledger which showed various payments of £2000 per month, which were put forward as payments on a commission agency basis for managing security sites for the Appellants.  But the Tribunal went on to reject the statement that the Respondent was a commission agent and said that he devoted his working life to the Appellants throughout his employment, and they then advert to the fact that there was concern on the part of the Respondent that he was not getting P60s at the end of the year, or normal tax information.  It appears that the Respondent was under some pressure from the Inland Revenue in relation to this.  

11	The Employment Tribunal then go on to find that there was an additional pressure on the Respondent because Mr Stevenson had another financial interest in which the Respondent was working, and again, he was asking for payslips and other documentation which were not provided.  

12	Accordingly, on the face of it, the Employment Tribunal appear to have been deciding that, first, they rejected the evidence of the Appellants that the Respondent was employed as an employee elsewhere and not with them, and secondly that they rejected the Appellant’s contention that insofar as he did any work for the Respondents he did so whilst self-employed and not as an employee.  It is suggested that they relied on their rejection of the Appellant’s account as the basis for that finding.  However, it seems to us that the contrary is the case.  The Employment Tribunal consciously accepted the evidence of the Respondent and they backed that up with references to his noting the absence of P60s and other documentation at the relevant time and by finding that regular payments, albeit of £2000, were being recorded.  

13	It is suggested by Mr Jupp that there is an inconsistency between the assertion that the Respondent devoted all his working life to the Appellants in paragraph (d) with the assertion that he was also working for Mr Stevenson in paragraph (e).  It seems to us that there is perhaps a lack of a wholly accurate means of expression, but it is clear to us that what the Tribunal were finding, when they referred to the entirety of the Respondent’s working life, was reference to the basic working week.  This seems to us to make reasonable sense, which one can, of the Decision.  The Employment Tribunal were saying that the work for Mr Stevenson at his bar was an extra.  That must be the case, it seems to us, because there is reference to finding the hours long and the circumstances difficult, and the Tribunal found it was “additional” pressure, so they were clearly seeing the two activities as existing side by side.  We find there is no inconsistency.  

14	In paragraph 4 of their Decision the Tribunal set out their finding as to the preliminary issue as to whether the Respondent was an employee of the Appellants and they said this:
“….. we found that the [Respondent] was clearly an employee of the [Appellants] throughout the period cited in his originating application on 3 January 1998 to 30 June 2000.  His evidence was clear and consistent.  That is the company for which he worked.”

We could not find a clearer synonym or alternative means of expressing the finding that the Respondent, by his evidence, had discharged the burden of proof on him of establishing that he was an employee.  Further, in the body of their Decision, by referring to his evidence, his payment, his requests for P60 and tax information, it was clear that the Employment Tribunal was basing their finding of fact about his being an employee on primary findings of fact which they had referred to in the Decision.  

15	At the same time it is true that the Tribunal rejected evidence put forward by the Appellants.  There can sometimes be no better evidence of a proposition than incorrect contrary evidence and that is clearly what the Tribunal thought.  The fact that the Tribunal found that the Appellants had put forward unconvincing evidence and that this was support for the Respondent’s case that he was an employee does not demonstrate that they were imposing a burden upon the Appellants to prove the contrary, but simply that the Employment Tribunal found that the Appellants’ evidence went towards assisting the Respondent in discharging his burden, because their evidence was found to be false.  

16	Accordingly, we are satisfied that the Tribunal did approach this matter with the correct burden of proof in mind.  They did make some findings of fact, and they did demonstrate in a reasonable way the way in which they reached their judgment in the matter.  Perhaps their analysis could have been more clearly set out, but that is simply a matter of choice of structure and terminology.  

17	The essence of this case is that the Employment Tribunal asked themselves the right question; they made findings of fact which they were entitled to make, in accordance with the evidence, and they applied those facts to the question of law in a way in which they were entitled to do without demonstrating any arguable error of law in any of those areas.  

18	Accordingly, we are driven to the conclusion that there is no arguable issue of law to be raised upon the Decision of the Employment Tribunal in this case, and the appeal must be dismissed therefore at this stage.